Louisiana v. Resweber, et.al. (No. 142-Oct. term, 1946)

Question of whether second attempt to electrocute relator constituted violation of Due Process clause. Dissenting opinion: drafts of opinion; printed opinion; memoranda for oral statemments of dissent; fragments.

Majority, Reed J., assumes without deciding that a second execution might represent a violation of the principles of the 5th Amendment (double jeopardy) and the 8th Amendment (cruel and unusual punnishment) and thus would constitue a violation of the Due Process clause of the 14th Amendment (applicable to the states) but holds that here no such violation existed. "There is no purpose to inflict unnecessary pain nor any unnecessarly pain involved in the proposed execution." 329 U.S. at 464, 91 L.Ed. at 427. It is no more double jeopardy because of electric malfunction than in "new trial (granted) for error of law at the instance of the state...." 329 U.S. at 463, 91 L.Ed. at 426.

Burton, J., dissenting, with Douglas, Murphy, and Rutledge, JJ., states, "(a)lthough the failure of the first attempt...was unintended, the reapplication of the electric current will be inentional....(T)he uniqueness of the present case demonstrates that...two separated applications are sufficiently 'cruel and unusual' to be prohibited. Lack of intent that the first application be less than fatal is not material. The intent of the executioner cannot lessen the torture or excuse the result." 329 U.S. at 476, 91 L.Ed. at 433. Burton, J., concludes by urging remand to Louisiana courts for further factual determinations.